No Panaceas

Friday, May 16, 2003
Filibuster lawsuit: Judicial Watch has filed suit against the Senate over judicial filibusters.

Doesn't anyone play 42 anymore?: Okay, so we all know about the Iraqi playing cards. Now we have the Texas Chicken D's playing cards. If you like the chicken theme then you can get the Chickenhawk playing cards. And while you're at, you can also get the Psychedelic Republican trading cards. They're sure to be a collector's item.

Thursday, May 15, 2003
Scapegoat search: Today's Roll Call reports on the other day's tax bill mixup. (Roll Call is a subscription service. The article is by Emily Pierce, "Tax Snafu Sparks Fight.") There's some partisan snipping over the snafu. Whatever. But what's important is the way the Senate Parliamentarian -- Alan Frumin -- is once again in the spotlight and crosshairs.

In addition to lambasting Democrats, some Republicans also questioned why Frumin took it upon himself to identify the problem when Democrats appeared to be unaware of the arcane rule requiring budget reconciliation measures, as the tax bill was designed to be, to follow a specific parliamentary order.

"He could be technically right," Senate Finance chairman Chuck Grassley (R-Iowa) said of Frumin's ruling. "But there's no need to have a strict interpretation of the rules like that.


Some GOP aides even hinted that Frumin's position as Parliamentarian could be in danger if he continued to make rulings that disadvantaged their political goals. [Emphasis added] His decision could be crucial in implementing GOP proposed rule changes that would help them avoid filibusters of judicial nominees.

An aide goes on to claim that Frumin is "burning every bridge." But was the ruling correct?

"The Parliamentarian was correct in his ruling," said [Budget committee chair] Nickles.

Senate parliamentarians serve two masters and that puts them in a potentially untenable position. On the one hand parliamentarians serve the institution. Their job is to make sure that Senate procedure proceeds logically and fairly in keeping with the body's rules and precedents. They are supposed to be neutral interpreters of the law in a way that's not dissimilar to the way judges are supposed to let law and precedent guide them. As with judges, the substitution of precedent with ideology or partisanship can lead to capriciousness and unpredictability.

However, parliamentarians serve at the behest of the majority leader. As such they are subject to implicit or explicit pressure to rule in favor of the majority party. So it can be an impossible situation. Frumin's predecessor was fired because he annoyed the Republican leadership. Frumin appears headed for a similar fate, especially if the Republicans try to take on the so-called "nuclear option" on the filibuster.

If things continue along this path then eventually we will end up with parliamentarians who are purely agents of the majority party, a guarantee that party fighting in the chamber will get even worse.

Are filibuster reform attempts causing a Republican split?: An article in today's The Hill hints at differences among Republican senators regarding reforming the filibuster. Unfortunately the article does not get too much over the nature and intensity of the differences. Is there general consensus on the need for reform but disagreements over the options? Or, are there Republican senators who oppose tinkering with the filibuster despite the frustration over confirmations?

Senate Republicans are split on forcing a change of filibuster rules that have prevented the Senate from voting on two of President Bush’s judicial nominees.

Nevertheless, a number of GOP lawmakers seem undaunted by a parliamentary maneuver that could permanently change the nature of the Senate.

"I think some are concerned it may upset the whole way the Senate operates and make it more like the House," said Sen. John McCain (R-Ariz.), referring to a bold Republican proposal that has become known as the nuclear option.

"You could make the argument for [banning the filibuster of] judges. I think you could make the same case for laws," he added.

The rest of the article reprises the Republican options and gives voice to Republican support for reform, but doesn't really dig into the supposed split, except for this quote from Frist:

Frist said the proposal to change the Senate rules either formally or by a ruling of the chair has: "engendered a lot of debate, discussion as I come back today."

I bet it has.

Wednesday, May 14, 2003
Headline pet peeve: I hate it when a headline is really misleading or just inaccurate. Sometimes I wonder if the people who write these things actually bother reading the attached article. Check out this AP piece that's running in Salon. The headline is "Study finds liquor ads popular with teens." What the story really is about is a finding that magazines that are popular with teens happen to run a lot of liquor ads. (Probably because the magazines are also popular with alcohol drinking young adults.) But the headline (purposely or just sloppily) implies that the ads cause the teen readership. So if AARP, the Magazine started running lots of liquor ads, do you think teen readership would go up?

Killer Bees: Yesterday's Houston Chronicle has a piece on the 1979 Killer Bees.

Tuesday, May 13, 2003
Now you know where your tickets dollars are going: One of my favorite Supreme Court decisions is Federal Baseball Club of Baltimore, Inc. v. National Baseball Clubs. In it the Supremes dictated that Major League Baseball was not subject to anti-trust laws because it does not engage in interstate commerce. The fact that teams traveled across state lines to play was merely incidental; baseball games themselves were intrastate events. It seems to me that if taken really literally this case denies the existence of interstate commerce except in cases where the parties straddle state lines. But, whatever, Federal Baseball has never served as much of a precedent, but it remains in effect, and baseball very much likes it that way and wants to keep it that way.

More embarrassing than important: The Finance Committee sent the wrong tax bill to the Senate floor.

The ultimate disappearing quorum: It's good to see that Texas politics hasn't lost all of its flavor. The Texas fight (or flight) over re-districting has now hit the national press as dozens of Democrats are hiding out in places like Ardmore, Oklahoma for the purpose of denying the Texas legislature a quorum. The Texas House Speaker can have legislators arrested and returned to Austin if they are absent without cause, but obviously Texas law does not extend into other states.

It reminds me of the 1979 "Killer Bees." In that case it was twelve Texas senators who fled to prevent the legislature from moving the Texas presidential primary forward for the purposes of helping John Connally's presidential campaign. (Not that it would have mattered much. Despite his abilities and the millions he raised, Connally ran a pathetic campaign.) It was a terrific story with radio stations constantly reporting Killer Bee sightings. I swear I saw all twelve of them one night at the Armadillo World Headquarters, but that's another story.

I suppose that hypothetically this could happen in Congress:

From House rule XX:
5. (a) In the absence of a quorum, a majority comprising at least 15 Members, which may include the Speaker, may compel the attendance of absent Members.

(b) Subject to clause 7(b) a majority of those present may order the Sergeant-at-Arms to send officers appointed by him to arrest those Members for whom no sufficient excuse is made and shall secure and retain their attendance. The House shall determine on what condition they shall be discharged. Unless the House otherwise directs, the Members who voluntarily appear shall be admitted immediately to the Hall of the House and shall report their names to the Clerk to be entered on the Journal as present.

From Senate rule VI:

1. A quorum shall consist of a majority of the Senators duly chosen and sworn. 2. No Senator shall absent himself from the service of the Senate without leave. 3. If, at any time during the daily sessions of the Senate, a question shall be raised by any Senator as to the presence of a quorum, the Presiding Officer shall forthwith direct the Secretary to call the roll and shall announce the result, and these proceedings shall be without debate. 4. Whenever upon such roll call it shall be ascertained that a quorum is not present, a majority of the Senators present may direct the Sergeant at Arms to request, and, when necessary, to compel the attendance of the absent Senators, which order shall be determined without debate; and pending its execution, and until a quorum shall be present, no debate nor motion, except to adjourn, or to recess pursuant to a previous order entered by unanimous consent, shall be in order.

Nonetheless, there are a couple of crucial differences between Congress and the Texas Legislature. (Well, there are plenty of differences...). First, legislators would have to flee the country because federal marshalls could make the arrest in any state. (Just imagine the hilarity at the Canadian and Mexican borders. "Sir, is that Tom Dashcle in your trunk?") More importantly, both the U.S. House and Senate have simple majority quorums. (It's less than a majority when the House operates in the Committee of the Whole.) In both Texas houses a quorum requires two-thirds present, thus making the disappearance act more attractive.